Thursday, September 29, 2011

Depositions allowed in lawsuit against Del Mar school district

“You’re not supposed to be able to take board members’ depositions,” Church [Ryan Church, an attorney with Stutz Artiano Shinoff & Holtz] said.

But the court did not agree.

Depositions allowed in lawsuit against Del Mar school district
By Marsha Sutton
Del Mar Times
September 29m 2011

Over the defendant’s objections, a judge ordered at a hearing held Aug. 19 that depositions could be taken of former Del Mar Union School District board members Steven McDowell and Annette Easton, in the case of Sharon McClain vs. the DMUSD.

Other rulings overturned DMUSD’s objections to providing documents and interrogatory responses to former DMUSD superintendent McClain.

Attorney Dale Gronemeier, who represents McClain in her case against the school district for wrongful termination, called it a very successful hearing.

“We’re starting to get the information we need,” Gronemeier said. “I think we have broken down an approach to the litigation where the other side was thinking that maybe they could prevent us from getting meaningful discovery.”

Gronemeier requested the McDowell deposition in March, but DMUSD’s legal counsel made a motion to quash the notice of deposition.

“They immediately asserted that it was improper because of what’s called the deliberative process privilege,” said Gronemeier, explaining that the deliberative process privilege is a rule of law that does not permit inquiry into the motives of legislators.

The defendant, Gronemeier said, was claiming that members of an elected school board cannot be subpoenaed because they are legislators. But he said the issues in this case were administrative, not legislative, and the deliberative process privilege applies only to legislative acts.

Furthermore, he said the rule doesn’t mean one can’t take a deposition, but objections may be raised to certain types of questions.

Ryan Church, an attorney with Stutz Artiano Shinoff & Holtz, explained in a May 12, 2011 article in this newspaper that the deliberative process privilege prevents public board members from being deposed and bars judicial inquiry into the motives of public officials.

“You’re not supposed to be able to take board members’ depositions,” Church said. But the court did not agree.

“Defendant’s deliberative process privilege objection is overruled,” read the court documents. According to the court, “under the circumstances of this case, the strong public interest in ascertaining the truth in judicial proceedings outweighs the public interest in nondisclosure.”

Two of Gronemeier’s motions, both granted, asked for the depositions of McDowell and the Person Most Knowledgeable (PMK) about the issues. He said the district and its legal advisors identified Easton as the PMK.

“The entity has the right to select the person,” Gronemeier said. “I can’t impose who they are.”

“We’ve agreed to allow them to be deposed,” said DMUSD attorney Dan Shinoff, of Stutz Artiano Shinoff & Holtz.

McDowell’s deposition was held Sept. 21 and lasted about six hours. Easton’s deposition is scheduled for Sept. 30, and Gronemeier said it may take three or four days. “There are a lot of facts in this case, a lot of details,” he said.

Shinoff said the judge at the trial will rule whether the information obtained by the depositions can be used as evidence. “For purposes of admissibility in trial, he’ll rule on it on a question-by-question basis,” Shinoff said.

Gronemeier said the testimony obtained from a deposition is valuable even though little of it is read in court. “I use it in the sense that I know what the person’s going to say,” he said.

Gronemeier will also seek the depositions of Doug Perkins, Comischell Rodriguez and Katherine White, the other three trustees who served during McClain’s tenure, because “the only people who have real knowledge of most of the events in dispute in the lawsuit are the five board members and Dr. McClain,” he said. Only Perkins and Rodriguez are still DMUSD board members.

McDowell deposition

McDowell was chosen first, Gronemeier said, because “we viewed him as a good starting point in this process.”

“Lawyers learn a lot in depositions, and you build an understanding from the depositions,” he said. “So by the time you get to the most important witnesses, you sharpen your knives quite a bit more.”

Gronemeier would not disclose specifics of McDowell’s deposition except to say that questions were related to McClain’s contention that the board did not have good cause to terminate her.

Termination for good cause, he said, requires an honest and thorough investigation. “So we’re looking at how adequately they conducted the investigation,” he said.

McDowell was also asked about his decision to abstain from the vote to release McClain, Gronemeier said.

Shinoff said the focus of the case is not why McDowell abstained. “The issue will be, did she or did she not breach the contract,” he said. “That’s the whole issue.”

McDowell was asked “all kinds of questions,” Shinoff said, “and he explained himself. He also provided the reasons why he thought there were very serious performance issues [with McClain].”

Both McDowell and Easton declined to comment.

Stutz Artiano attorney Jack Sleeth, considered an expert on closed-session open-meeting laws, handled the McDowell deposition and will represent Easton for her deposition Sept. 30.

Gronemeier said depositions can be contentious and are often an adversarial process. “But this was not a deposition where there was a lot of hostility,” he said.

Gronemeier praised Sleeth for his professionalism, calling him a very good lawyer. “Jack asserted many objections, most of which were to closed-session discussions,” he said. “Some were to attorney-client privilege. I have no criticism of the way he handled the deposition.”

Shinoff said Sleeth’s hourly rate is $170, to be paid by the DMUSD and its litigation insurance. Gronemeier said the cost of a deposition for his side will run about $1,000 per day for the court reporter, plus attorneys’ fees.

The other rulings

The hearing on Aug. 19 ruled on five motions, two on the depositions and three that overruled DMUSD’s objections to produce documents and answer interrogatories.

“Essentially it means I won on all the substantive issues,” Gronemeier said. He had sought monetary sanctions against the DMUSD, but that was denied.

Gronemeier filed the motions to seek relief for what he claimed were the district’s delaying tactics. “What they were saying is that Dr. McClain can get no deposition discovery,” he said.

When Shinoff’s firm requested documents and asked for a deposition of McClain, which took place over three days in June, “we didn’t stonewall,” Gronemeier said. “We don’t jerk people around in discovery.”

Shinoff had earlier alleged that it was Gronemeier who was delaying the process.

Besides documents, Gronemeier said the DMUSD also refused to release information about witnesses. “That got knocked down, and they have now provided the addresses and phone numbers of about 50 people they have listed as witnesses,” he said.

He also just received about one thousand pages of documents from the DMUSD that he had requested.

Shinoff minimized the importance of the August decisions, saying, “It was some names that they asked for that we provided, but that was the extent of the ruling.”

“It’s just part of discovery, and it has nothing to do with the merits of the case,” Shinoff said.

McClain was hired by the DMUSD on Sept. 17, 2008, at a base salary of $168,000, through June 30, 2009, the end of the fiscal year. Salary increases in the contract are listed as $178,000 for 2009-2010, $183,000 for 2010-2011, and $188,000 for 2011-2012. She was released from employment March 31, 2010,

In her formal complaint, she claimed the DMUSD breached her agreement on a number of grounds, calling the conduct of the DMUSD “arbitrary and capricious.”

The district’s evaluation, written September 2009, charged that McClain’s performance constituted a “breach of material terms” of the contract and cited deficiencies, willful neglect, failure to uphold contract provisions, and a “general inability to be effective.”

The performance review was signed by all five board members. The vote seven months later to terminate McClain’s employment, however, was 3-1-1, with Rodriguez opposed and McDowell abstaining.

Gronemeier said McClain seeks just compensation. “Our position is they have never … given her the proper notice, and her salary is still accruing,” he said. “The contract continues in force. It wasn’t properly terminated.” McClain seeks salary through June 30, 2012, the end of the contract.

McClain also contends that her retirement income was diminished by the loss of the extra years of salary. “The reduced pension benefits are very significant damages,” Gronemeier said.

In addition to monetary compensation, McClain is seeking the restoration of her standing in the community.

“She has been a very successful woman in her professional career, and what they did to her sullied her reputation,” Gronemeier said. “She wants vindication for that, and appropriately so.”

Despite the setbacks last month, Shinoff remained sure of his case. “I’m still very confident in the merits of my position,” he said.

Sunday, September 25, 2011

The best way for the next mayor to improve education in San Diego is to make educated decisions

Next Mayor's Office Should Be Education Model
Sep 22, 2011.
by Michael Aguirre
Letters, Voice of San Diego

The best way for the next mayor to improve education in San Diego is to make educated decisions based on reality and good ideas. The mayor should be an example of how a well-educated person acts. The mayor's staff should include scholars. The mayor should be a source of basic research on solutions for the city's problems. The mayor should show an understanding of financial management by getting the audits out on time. The mayor should do important parts of needed research and writing. Abraham Lincoln was busy with the Civil War but still managed to write his own speeches. If the mayor wants to change education in San Diego, begin by bringing education to the mayor's office.

Michael Aguirre is a former City Attorney.

Wednesday, September 21, 2011

Has your blog been blocked? Is your platform provider violating its own Terms of Use?

See all posts about Yahoo and free speech.

Account Deactivation and Content Removal
Guiding Principles and Practices for Companies and Users
September 20, 2011
by Erica Newland,
Caroline Nolan,
Cynthia Wong,
Jillian York
Center for Democracy & Technology,
the Berkman Center

This report...recommends principles, strategies, and tools that companies and users alike can adopt.

From the activist who communicates with her network via her Facebook account, the user who posts documentary-style videos to YouTube or the citizen journalist who raises awareness with photos uploaded to Flickr, platforms that host user-generated content are increasingly used by a range of civic actors in innovative ways: to amplify voices, organize campaigns and coordinate disaster response, and advocate around issues of common concern.

However, while the online space may be perceived as a public commons, private entities play a role in shaping online activity, behavior, and content via Terms of Use (ToU), community guidelines, and other mechanisms of control. Platform providers often enforce such rules in response to potential threats, misuse, or ToU violations; users must observe them or risk losing their accounts, their contacts, or their ability to post content.

The clarity, transparency, and consistency of how such terms are established and implemented are important to all users, but for the growing number of human rights activists who depend on web 2.0 platforms for core elements of their work—and for whom removed content and deleted accounts can have severe consequences—the stakes are much higher...

Monday, September 19, 2011

Children Sue Judicial Council, Claim Denial of Effective Counsel

Children Sue Judicial Council, Claim Denial of Effective Counsel
By Robyn Hagan Cain
September 16, 2011

Four California foster kids sued California Supreme Court Chief Justice Tani Cantil-Sakauye in her capacity as Chair of the California Judicial Council alleging that “crushing and unlawful caseloads” frustrate the ability of Sacramento Dependency Courts to fairly and adequately hear their cases, and prevent court-appointed counsel from providing effective assistance.

Their suit seeks a Dependency Court for Sacramento’s abused and neglected children that meets basic due process requirements, and provides adequate, competent, effective counsel for the children of Sacramento County in dependency proceedings.

The Judicial Council oversees the statewide administration of justice in the state's courts. As Chair, the Chief Justice directs the Council's work, including its allocation of the judicial branch budget; promulgation of rules of court administration and procedure; and setting of priorities for the system's continual improvement.

The district court dismissed the complaint on abstention grounds; it concluded that, under O'Shea v. Littleton, federal courts may not entertain actions that seek to impose "an ongoing federal audit of state proceedings." The Ninth Circuit Court of Appeals agreed.

The Ninth Circuit noted that, in order to declare the current attorney caseloads unconstitutional or unlawful, the court would necessarily have to consider through a generalized inquiry how many cases are constitutionally and/or statutorily permissible, whether some types of cases require more investigation or preparation, which types of those cases deserve more resources, and how much time or attention is constitutionally and/or statutorily permissible.

The foster children argued that the Ninth Circuit Court of Appeals should reverse the district court's ruling under Los Angeles Cnty. Bar Ass'n v. Eu, a 1993 case in which the L.A. County Bar Association claimed that average court delays and "speedy civil litigation" rights problems would be solved by a simple increase in the number of judges.

This case, by contrast, involves the impact of attorney caseloads with regard to effective counsel; remedies could involve substantial interference with the operation of the program, including allocation of the judicial branch budget, establishment of program priorities, and court administration.

The Ninth Circuit Court of Appeals concluded that the declaratory relief that the Plaintiffs sought would intrude in the administration of the Sacramento County Dependency Court, and agreed that O'Shea mandated abstention.

This case is an unfortunate reminder of the practical effects of California budget cuts. Even if the Ninth Circuit had ruled in favor of the plaintiffs in the case, where would the Judicial Council find the funds to effect the necessary changes in the courts?

Tuesday, September 13, 2011

9th Circuit overturns decision about religious banners in Johnson v. Poway Unified School District

I don't understand why the ACLU would be trying to take down the Soledad cross and at the same time trying to preserve religious banners in a public classroom. The only thing that I can take away from this is that the San Diego ACLU has a very piecemeal, unprincipled approach to legal issues.

I can't say I'm shocked, though, that the San Diego ACLU would be on the wrong side in a First Amendment case. I have come to understand that the San Diego ACLU is different from the typical ACLU organization. The San Diego ACLU board and its head counsel, David Blair-Loy, seem to pander to political interests rather than adhering to principles of justice.

I would never expect to be allowed to present one-sided religious points of view to my students. The California curriculum framework tells teachers that we should present a minimum of three different religions anytime we teach about religion.

Click HERE for opinion.

Johnson v. Poway Unified School Dist.
(9th Cir. - Sept. 13, 2011)
by Shaun Martin
California Appellate Report
September 13, 2011

This may well be the best opinion I've ever read from Judge Tallman.

It's really, really good. Regardless of whether you agree with it -- and it involves a controversial issue -- it's incredibly coherent, comprehensive and tight. It's written extremely, extremely well. It's an extremely good primer on the issue. Well done. Very.

I'll not tell you how the case comes out. You should read the opinion for yourself. But here's the issue:

A public school teacher down here in Poway (a suburb of San Diego), Bradley Johnson, teaches mathematics (at Westview High School). He hangs two large banners -- each about seven feet wide and two feet tall -- on the wall of his classroom. One has red, white, and blue stripes and states in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.” The other states: “All men are created equal, they are endowed by their CREATOR.” You can look at pictures of the banners in the appendix to the opinion if you'd like. He's the faculty sponsor of the Christian Club, but says that his banners are purely patriotic, with no religious purpose.

The school district tells him to take down the banners but is free to put up these things in context if he'd like (e.g., to put the entire Declaration of Independence on his wall). Johnson refuses, saying that he has a protected First Amendment right to say what he wants on these issues, whereas the school district contends that he's a government employee so his speech rights are limited. Johnson ultimately complies with the order and takes down the banners, but promptly sues. He also visits other classrooms shortly after filing suit and photographs other teachers' walls that he believes display sectarian viewpoints, including Tibetan prayer flags; a John Lennon poster with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality”; and a poster of Malcolm X.

Who should win?

It's far from a no-brainer. The district judge, Judge Benitez, granted summary judgment to one side. The Ninth Circuit reverses -- unanimously -- and orders the granting of summary judgment to the other side. So clearly reasonable minds both can and do differ.

Plus, check out the lineup of the amici. You can easily (and accurately) guess which side the Thomas More Law Center is going to be on, which side the National School Boards Association supports, and where Americans United for Separation of Church and state stands. But what about the ACLU? Which side do you think they're going to come down on?

All good questions. Which make the opinion only even more worth reading.

Monday, September 12, 2011

Teachers interested in improving teacher evaluation form new groups

NewTLA, for instance, began as a group of Los Angeles teachers who were frustrated with the local union’s failure to put forth proposals on teacher evaluation and professional development.

September 12, 2011
New Groups Giving Teachers Alternative Voice
By Stephen Sawchuk

In times of great uncertainty for U.S. teachers, who speaks for them? The question is almost axiomatic in its simplicity, but the answer is far less clear-cut.

The teachers’ unions remain the most visible, powerful, and probably the most important advocates for teachers. But over the past few years, a number of new efforts have sprung up purporting to give teachers a say in policy, and their emergence is extending discussions about “teacher voice” in unexpected ways.

In general, the groups’ origins, goals, and purposes remain diverse, and their work continues to evolve. Where the groups seem to converge, though, is that their members are gradually becoming involved in conversations about policy, ranging from teacher evaluation to seniority to professional development.

Groups include the Los Angeles-based NewTLA, which operates as a caucus within the city teachers’ union, and the Educators 4 Excellence group in New York City, which has purposely worked outside the teachers’ union.

Two other efforts, one begun by the Boston-based Teach Plus nonprofit organization and the other by the Carrboro, N.C.-based Center for Teaching Quality, have gathered together teachers in multiple cities. Their approaches are similar: providing those teachers with research on issues of interest and avenues for interacting with policymakers.

“There are so many teachers out there who want change and have great ideas, but they’ve had so few venues and vehicles to be heard, understood, and embraced,” said Barnett Berry, the president of the center. “They’re itching for the research knowledge to help them articulate the connections between policy and practice.”
New Majority

It is hard to point to just one factor that has led to the surge in such groups.
Advocacy Groups

Caucus within United Teachers
Los Angeles
No. of Teachers: N/A
Location: Los Angeles

Nonprofit organization
No. of teachers: 2,000
(current fellows and alumni)
Locations: Boston, Chicago, Indianapolis, Los Angeles, Memphis, Tenn.

(Center for Teaching Quality)
Nonprofit organization
No. of Teachers: 85
Locations: Denver; Hillsborough County, Fla.; Illinois; San Francisco Bay Area; Seattle

Nonprofit organization
No. of Teachers: 2,500
Location: New York City
SOURCE: Education Week

One important influence, though, could be demographic changes. According to an analysis of federal data conducted by Teach Plus, 52 percent of teachers now have 10 or fewer years in the teaching profession, a phenomenon the group refers to as “the new majority.”

Teach Plus’ founder, Celine Coggins, began the organization in 2007 to give such teachers leadership opportunities and, ultimately, to help retain them in the profession.

“Having a say in how our schools look and function will play a role in their decisionmaking about whether they’re going to stay for another 10 years, or two, or five,” Ms. Coggins said.

The Center for Teaching Quality’s efforts date to 2003, when it began an initiative to assemble a cadre of accomplished teachers to discuss the broad issues facing the profession. Gradually, the idea has evolved into the New Millennium Initiative, in which local networks of teachers work to make their voices heard on topics of local interest, such as the implementation of new state laws.

Support from a variety of private national and local foundations, including the Joyce Foundation, the Bill & Melinda Gates Foundation, and the Denver-based Rose Community Foundation, have helped in the transition. (The Joyce Foundation underwrites coverage of improvements to the teaching profession in Education Week, and the Gates Foundation provides grant support to Editorial Projects in Education, the newspaper’s parent company.)

Jessica Keigan, a high school language arts teacher in Denver participating in the initiative there, said she was excited not just about having her voice heard, but also in learning the details of how education policy is made.

“I’d never immersed myself in policy before,” she said, “and it’s been a great way to see how decisions get made and to feel I had some awareness and also some say.”

The Educators 4 Excellence group was formed by Evan Stone and Sydney Morris, who were frustrated by a lack of control over district policy decisions while teaching in a traditional public school in New York City. Their decision to form a group for like-minded colleagues, in 2010, quickly attracted other teachers.

“There are all these new changes created at the 30,000-foot level pushed down to you,” Ms. Morris said. “It’s our mission to include teachers in creation of those changes.”
Whither Unions?
The traditional teachers’ unions have had a variety of reactions to the emergent organizations, ranging from respectful to uneasy.

NewTLA, for instance, began as a group of Los Angeles teachers who were frustrated with the local union’s failure to put forth proposals on teacher evaluation and professional development.

In the union’s recent internal election, NewTLA-affiliated members won a significant number of seats on the United Teachers Los Angeles’ governing body...

Saturday, September 10, 2011

Sutter Health and Kaiser Permanente nurses strike September 22, 2011

Sept. 9, 2011
National Nurses United Announces One-Day Strike by 23,000 California RNs September 22
Market Watch

SAN FRANCISCO, Sept. 9, 2011 /PRNewswire via COMTEX/ -- More than 23,000 registered nurses at 34 Northern and Central California hospitals will hold a one-day strike Thursday, September 22, the California Nurses Association/National Nurses United announced today.

The strike affects two of California's largest and most profitable hospital chains, Sutter Health and Kaiser Permanente, as well as Children's Hospital Oakland.

A centerpiece of the strike at the Sutter hospitals is Sutter's unprecedented demands for some 200 sweeping cuts in patient care and nurses standards on top of months of widespread reductions in availability of patient care services, motivated by commercial concerns, throughout the greater Bay Area.

Kaiser RNs will engage in sympathy strike activity to support other frontline healthcare workers who face demands for significant cuts in health benefits, which follow a steady series of local service reductions Kaiser has been enforcing for nurses and patients in Northern and Central California.

For Children's Oakland RNs, it will mark their third strike over efforts by the hospital administration to limit healthcare coverage for nurses and their families.

"Nurses will not accept drastic, unwarranted, and unconscionable cuts that harm our communities, harm our colleagues, and harm our families," said CNA Co-president Deborah Burger, RN.

According to CNA/NNU Sutter wants to restrict the ability of many of its nurses to advocate for patients in making clinical assessments of staffing and other patient needs; force nurses to work when sick, exposing fragile patients and themselves to illness; subject nurses to arbitrary discipline based on benchmark budget goals; and sharply raise out-of-pocket costs by thousands of dollars for nurses and their families. All despite amassing $3.7 billion in profits the past six years.

"We staunchly refuse to be silenced on patient care protections," said Sharon Tobin, a 24-year RN at Sutter Mills-Peninsula in Burlingame. "A common theme throughout management's proposals is removing our presence on committees that address important patient care issues and nursing practices. As nurses, we speak up, and we insist on standards that safeguard our patients, but Sutter doesn't want to hear about anything that might cut into their huge profits."

Kaiser RNs will strike in sympathy and support for Kaiser social workers, optometrists, psychologists, and other frontline workers who are striking September 22 to protest substantial reductions in healthcare and retirement coverage...